Archive for June 2nd, 2010

The Canadian Copyright Bill: Flawed But Fixable

This afternoon, the government introduced the Copyright Modernization Act (or Bill C-32), the long-awaited copyright reform bill [the bill is not yet online, but I attended the media lockup in Montreal]. It is nearly two years since C-61 was introduced and nearly a year since the national copyright consultation, yet discouragingly some things have not changed. As I reported several weeks ago, Canadian Heritage Minister James Moore won the internal fight over Industry Minister Tony Clement for a repeat of C-61's digital lock provisions and against a flexible fair dealing approach and today's bill reflects those policy victories. 

However, over the past month, Clement made steady in-roads in trying to restore some balance in the bill and achieved some wins. The bill contains some important extensions of fair dealing, including new exceptions for parody, satire, and (most notably) education.  It also contains more sensible time shifting and format shifting provisions that still feature restrictions (they do not apply where there is a digital lock) but are more technology neutral than the C-61 model.  There is also a "YouTube exception" that grants Canadians the right to create remixed user generated content for non-commercial purposes under certain circumstances. While still not as good as a flexible fair dealing provision, the compromise is a pretty good one.  Throw in notice-and-notice for Internet providers, backup copying, and some important changes to the statutory damages regime for non-commercial infringement and there are some provisions worth fighting to keep.

Yet all the attempts at balance come with a giant caveat that has huge implications for millions of Canadians.  The foundational principle of the new bill remains that anytime a digital lock is used – whether on books, movies, music, or electronic devices – the lock trumps virtually all other rights.  In other words, in the battle between two sets of property rights – those of the intellectual property rights holder and those of the consumer who has purchased the tangible or intangible property – the IP rights holder always wins.  This represents market intervention for a particular business model by a government supposedly committed to the free market and it means that the existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device.  Moreover, the digital lock approach is not limited to fair dealing – library provisions again include a requirement for digital copies to self-destruct within five days and distance learning teaching provisions require the destruction of materials 30 days after the course concludes. 

The digital lock provisions are by far the biggest flaw in the bill, rules that some will argue renders it beyond repair.  I disagree. The flaw must be fixed, but there is much to support within the proposal. There will undoubtedly be attacks on the fair dealing reforms and pressure to repeal them, along with the U.S. and the copyright lobby demanding that their digital lock provisions be left untouched.  If Canadians stay quiet, both are distinct possibilities.  If they speak out, perhaps the bill can be fixed.  I'll post an update of my 30 things you can do shortly.  In the meantime, I'm relaunching Speak Out on Copyright to focus on this bill and encouraging Canadians to join the Fair Copyright for Canada Facebook group (to get active) and the Fair Copyright for Canada Facebook Page (to stay updated).

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June 2, 2010 230 comments News

“We Don’t Care What You Do, As Long as the U.S. Is Satisfied”

David Akin has pointed to a new paper from Blayne Haggart, a doctoral student at Carleton who is focusing on copyright policy in Canada, the U.S., and Mexico.  The paper, being presented this week in Montreal, includes some interesting analysis of digital copyright reforms in each country.  Given today's introduction of the copyright reform bill, of particular significance are comments Haggart obtained from Michele Austin, who served as Maxime Bernier's chief of staff when he was Industry Minister. 

According to Austin, the decision to introduce U.S.-style DMCA rules in Canada in 2007 was strictly a political decision, the result of pressure from the Prime Minister's Office desire to meet U.S. demands.  She states "the Prime Minister's Office's position was, move quickly, satisfy the United States." When Bernier and then-Canadian Heritage Minister Bev Oda protested, the PMO replied "we don't care what you do, as long as the U.S. is satisfied."

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June 2, 2010 46 comments News

An Unofficial User Guide to This Afternoon’s Copyright Bill

With the copyright bill – Bill C-32 – being introduced this afternoon, it is worth noting that my technology law column last week (Toronto Star version, homepage version) focused on some of the key issues likely to find their way into the bill.  The column noted the internal dynamics that led to the bill are by now fairly well known.  Industry Minister Tony Clement, emboldened by last summer’s copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle.  Canadian Heritage Minister James Moore advocated for a U.S.-style protectionist approach, with priority given to digital locks that can be used to limit copying, access, and marketplace competition.

With the active support of Prime Minister Stephen Harper, Moore won the fight over digital locks and the new bill will feature provisions certain to please the U.S. government and lobby groups.  Yet the bill will include far more than just tough legal protection for a digital locks.  

This brief unofficial user's guide to the new legislation that focuses on three key issues – fair dealing, Internet provider liability, and digital locks (Internet downloading is unlikely to figure prominently in the bill).

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June 2, 2010 19 comments Columns